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2001 Supreme(Ker) 527
Judges : K.A.ABDUL GAFOOR
Sunil K. - Appellant
Versus
State of Kerala - Respondent
Case No : OP No 15618 of 1998
Decided On : 11/06/2001
Advocates Appeared :
For the Petitioner: C.C. Thomas, M.C. Karthikeyan, Joe Joseph Kochikunnel, Nireesh Mathew, P.J. Francis, Advocates. For the Respondent: K.I. Abdul Rasheed (Govt. Pleader).
Headnote:
Constitution of India – Article 14 – Kerala Foreign Liquor Rules 1953 – Rule 2 – Amendment of Rule – Constitutionality – Held,Unworkability results in arbitrariness – Consequently the rule has to be struck down – Based on the reasoning mentioned above, finding that the amendment brought in is so unreasonable and therefore shall be offending Art. 14 of the Constitution, the said amendment introduced in the Foreign Liquor Rules as per SRO and published in the Kerala Gazette with effect from 5.3.1998 is declared unconstitutional – No doubt, the words 'in line with Indian Standard Specification' in this regard is introduced in the rule with some meaning – Specifications as contained in Exts. P1 and P2 do have some application – That is plus or minus 3 per cent equal to 5.25 degree. In such circumstances what shall be the variation with regard to the spirit content whether it is actual 1.75 degree or 1.75 degree with reference to the ISI specification is not discernible from the rule – Words 'in line with Indian Standard Specification (ISI) in this regard cannot be rendered inoperative and meaningless – Because ISI standard is accepted all over the world – This is a case of, as contended by the petitioners, unworkability of the rule resulting in unreasonableness – Court have already held that the rule is unworkable in the circumstances as mentioned above – Naturally it shall result in arbitrariness and is violative of Art. 14 of the Constitution.
K.A. Abdul Gafoor, J
In this batch of Original Petitions the petitioners, licensees of FL-1 and FL-3 shops and/or their employees challenge the amendment to Rule 2 of the Foreign Liquor Rules introduced as per SRO No. 225/1998 Published in the Kerala Gazette dated 5.3.1998 in substitution of the then exist provision introduced on 29.3.1996 as per SRO 326/1996 and published in the Gazette on the same day. The amendment introduced as per SRO 326/1996 as well is also challenged.
2. Rule 2 of Foreign Liquor Rules originally issued on 17.1.1953 reads as follows:
"The minimum strength at which imported and Indian made foreign spirits can be sold are 35 degree UP of gin and 25 degree UP for all other kinds of spirits."
The Rule did not provide for any variation of the actual proof of spirit content. The authorities found that there is chance of variation of the spirit content and consequent variation in the proof of Indian made foreign liquor sold in the State. Therefore an amendment was introduced as per SRO 326/96 as follows:
"However the actual proof spirit content of such liquor may be 1 degree proof under or over the above proof strength."
So a variation between 34 to 36 degree UP in the case of gin and 24 to 26 degree UP in the case of other kinds of spirit was permitted. This formed as a condition in the licences issued subsequent to such amendment. Later some more modification was found necessary by the authorities and in place of the amendment brought in as per SRO 326/96 the following was substituted.
"However the actual proof of spirit content of such liquor maybe 1.75 degree proof under or over the above proof strength in the line with the Indian standard specification (ISI) in this regard. Provided that because of efflux of time in storage, the degree under proof is likely to get deteriorated due to the chemical nature of ethyl alcohol, any punitive action under this rule shall be taken only wth the prior approval of Excise Commissioner."
This was as per SRO 225/98 to be effective from 5.3.1998. All these Original Petitions were filed subsequent to the amendment effected as per SRO 225/98. Along with challenge to the this provision introduced in 1998, the provision that was brought to the statute book for the first time as per SRO 326/1996 is also impugned. The reason for impugning a deleted provision is that there were certain prosecutions pending at that time with regard to the variation of proof strength of the alcohol taken from the shops of some of the petitioners.
3. The petitioners, impugning these provisions contend that bulk quantity of Indian made foreign liquor sold in this State is brought from outside the State. They are bound by the standard insisted by ISI as revealed in Exts.P1,P2 and similar standards in respect of different types of Indian made foreign liquor. This specification was suggested by ISI on a scientific basis. With regard to the requirement of alcohol content Ext. P1 provides, concerning brandies, that
"The ethyl alcohol content in brandies shall be 42.8 percent by volume (25 degrees under proof) at 15/15 degree Centigrade when determined according to the method prescribed in 3 of IS 3752:1998. The tolerance limits for ethyl alcohol content shall be + 3.0 percent of the declared strength. However, the ethyl alchol content and its tolerance may vary according to the Rules and Regulations prescribed by the State Excise rules."
Thus a variation upto 3 percent of the declared strength is allowed. Three percent is equivalent, in terms of degrees to 5.25 degrees. This conversion is not disputed. Same Clauses is contained in other types of liquor as well. The petitioners contend that when they are selling Indian made foreign liquor manufactured outside the State for which the rules and regulations prescribed as per the Foreign Liquor Rules in Kerala are not applicable, it is possible that they may happen to sell Indian made foreign liquor having proof strength above or below 5.25 degree. It will b
